Resolution CM contract MirabileRESOLUTION NO. _______________ 1
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A Resolution of the Mayor and City Commission of the City of South Miami
Florida, relating to the position of City Manager; and relating to contracts;
authorizing the execution of an employment agreement between the City of
South Miami and Hector Mirabile, Ph.D; providing an effective date.
WHEREAS, pursuant to Article II, Section 7 of the City of South Miami Charter the
Mayor and City Commission is vested with the power to appoint a City Manager; and,
WHEREAS, the City Commission has conducted a nation-wide search for a City
Manager and has received sixty-nine (69) applications, has screened the applications with the
assistance of the Mercer Group and has interviewed seven (7) finalists for the position of City
Manager; and
WHEREAS, the City of South Miami wish to employ Dr. Mirabile services as City
Manager of the City of South Miami by executing the attached employment agreement.
Now therefore be it resolved by the mayor and city commission of the City of South
Miami, Florida, that:
Section 1. The above whereas clauses are incorporated by reference into the body of
this resolution.
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Section 2. The terms of the agreement between the City of South Miami and Hector
Mirabile Ph.D shall be as provided for in attached exhibit A to this resolution, which exhibit
contains the employment agreement for Dr. Mirabile, as City Manager.
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Section 3. This resolution shall take effect immediately upon approval. 29
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PASSED AND ADOPTED this _______ day of _________________, 2010. 32
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ATTEST: APPROVED:
________________________________ _____________________________
CITY CLERK MAYOR
COMMISSION VOTE:
READ AND APPROVED AS TO FORM Mayor Stoddard:
AND SUFFICIENCY: Vice Mayor Newman:
Commissioner Palmer:
Commissioner Beasley:
Commissioner Harris:
_______________________________
CITY ATTORNEY
Exhibit A
EMPLOYMENT AGREEMENT
Employment Agreement (“Agreement”) dated as of the ____ day of ________, 2010,
between the City of South Miami, a municipal corporation (“City”) and
______________________ (“Employee”), collectively referred to as the Parties (“Parties”).
BACKGROUND
WHEREAS, the City is desirous of hiring a City Manager; and
WHEREAS, the Employee is experienced and qualified to assume the duties of city
manager for the City; and
WHEREAS, the City wishes to retain the services of the Employee as the City Manager,
subject to terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: the mutual covenants
and conditions of this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment.
1.1 City agrees to employ Employee as City Manager to perform the duties
and exercise powers as provided by State law, the City Charter and the City Code, and to
perform such other legally permissible and proper duties and functions consistent with the
Employee’s position as City Manager as may be assigned by the City Commission from time to
time. Employee recognizes that the Commission makes policy and the manager carries out that
policy, therefore, employee will not initiate new policies unless first approved by the
Commission.
{M1880581_8}
1.2 Employee shall report to the City Commission. Employee hereby accepts
such employment. During the Term of Employee’s employment by City, Employee shall
(a) devote substantially all of his/her full business time, abilities and attention exclusively to the
diligent performance of his/her duties with City in a professional manner and in accordance with
applicable law and (b) not engage in any other business activity, whether or not such activity is
pursued for profit or advantage; provided, however, that Employee may (x) engage in personal
and/or passive investment and charitable activities and (y) continue to be a member of the board
of directors for public service companies (such as the United Police Federal Credit Union), so
long as such activities do not materially interfere with the performance of his/her duties under
this Agreement and do not result in a conflict of interest in regards to Employee’s duties and
obligations to the City.
1.3 Meeting Employee’s Obligation. Employee shall be deemed to have
complied with Employee’s professional obligations to the City if:
(i) The Financial position of the City is within the parameters as set
forth in the approved budget of the City
(ii) The City does not have grounds to terminate Agreement for cause
under Section 4.1 of the Agreement; and
(iii) Employee keeps the City’s budget within approved parameters
except that this standard can be reasonably exceeded if unexpected
or unforeseen circumstances (act of God, hurricane, civil
disturbance) occur or unanticipated commission approved
expenditures; and
(iv) Employee establishes and maintains a professional working
relationship with other local governments as needed, in
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(v) Employee communicates with the commission on all matters
related to new ordinances or resolutions with appropriate backup
documentation so that the commission as a whole may make
appropriate decisions.
(vi) Inform the commission of specific commission identified critical
information requirements which may be amended from time to
time.
2. Term. Except as otherwise provided in this Agreement, the Term of this
Agreement shall commence on the 9th day of September, 2010 and shall terminate at the close of
business on the 21st day of September, 2010 (the “Term”).
3. Compensation. During the course of Employee’s employment by City, pursuant
to this Agreement:
3.1 Annual Salary. Employee shall be paid an annual salary of $140,000.00,
which shall be payable in equal installments on a bi-weekly basis in accordance with City’s
compensation practices; provided, however, if City establishes another pay period for its
employees which is no less frequent than semi-monthly, Employee shall be paid in accordance
with that schedule. Employee’s salary shall be subject to adjustments due to cost of living
increases during the Term, but at least yearly, at the sole discretion of the City Commission and
shall establish the new base salary for the Employee.
3.2 Fringe Benefits. During the Term, City, at its cost, shall make available to
Employee:
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3.2.1 Insurance. The City shall provide Employee and his/her
dependents, if applicable, with insurance benefits. If the Employee has current health coverage
he/she may elect to continue that coverage and the City shall be responsible for the payment of
that plan or the Employee may become a member of the City’s current health plan, which ever
the employee selects at his/her discretion. The City shall further provide Employee with a life
insurance benefit equivalent to two (2) years base salary.
3.2.2 Automobile. In lieu of a vehicle allowance or a mileage
reimbursement for use of Employee’s personal vehicle for City business, the City shall assign to
Employee and for his/her use a new unmarked motor vehicle (preferably a hybrid) at the City’s
expense, and which is owned or leased by the City, so as to assist Employee in performing
services for the City as City Manager. Employee may utilize the vehicle:
(a) In connection with providing services to the City pursuant
to this Agreement, including official travel for the City; and
(b) Personal use, including official passengers, within the State
of Florida.
City shall include the vehicle on the schedule of vehicles for which the City maintains
automobile casualty and liability insurance coverage. City shall provide maintenance and fuel
for the vehicle upon the same basis that it provides maintenance and fuel for other vehicles
within the municipal fleet. The City will provide a Sunpass with the vehicle and the Sunpass
account will be maintained at the City’s expense. The City shall pay for and provide Employee
with a credit card for paying all fuel for the vehicle for any business related travel of Employee
which is outside of Martin, Monroe, Palm Beach, Broward or Miami-Dade Counties. Employee
shall be responsible for any employee payroll taxes upon this vehicle allowance benefit in
accordance with applicable law. Should the City not have appropriate vehicles to provide during
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the life of this agreement, the City shall provide the Employee a vehicle allowance of $600.00
per month and a gasoline card or key to fuel the Employee’s personal vehicle.
3.2.3 Vacation, Sick Leave, and Holidays.
(a) Employee shall not use vacation for the first 90 days of
employment. After the first 90 days of employment the accrued vacation shall be made available
on the first full pay period of calendar year 2011 and accrued vacation shall be made available
each month as a prorated amount of the annual vacation allowance set forth in this section.
Commencing with the execution of this Agreement, Employee shall commence accruing hours
of vacation for the calendar year 2010, prorated on a monthly basis at 17.78 hours per month; for
calendar year 2011 Employee shall accrue 200 hours of vacation prorated on a monthly basis at
16.67 hours; for calendar year 2012 to the expiration of this agreement Employee shall accrue
240 hours of vacation prorated on a monthly basis at 20 hours. Employee must use a minimum
of 180 hours of vacation unless receiving authorization to exempt any part of this requirement by
the City Commission. Employee shall be allowed to roll over unused vacation time into a
vacation bank in excess of the 180 hours of vacation utilization. Such vacation hours may be
used in the event Employee is without Illness time and the severity of the illness is of such nature
prevents the Employee from returning to work. Additionally, at time of separation, all vacation
hours up to 400 hours will be paid out at 100%.
(b) Employee shall receive one (1) day or (8) hours per month
of sick time or such additional sick time, if greater, as is provided to City’s senior management.
The sick time may be accrued and rolled over to a later date and shall otherwise be consistent
with City policies for senior management.
(c) Employee shall be entitled to holidays in the same manner
as senior management employees of the City.
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Pension. The City shall contribute 10% of base salary per year as a contribution
to Employee’s City sponsored retirement plan or any other retirement plan (401a)
selected by Employee for his benefit. Employee shall be allowed to contribute
any amount in addition to the contribution by the City to the qualified retirement
plan (401a) or (457b) up to the maximum allowable by law.
3.2.4 Equipment. Provide Employee, at City’s cost, with equipment
necessary to fulfill Employee’s duties, including but not limited to electronic equipment,
computer, etc.
3.3 Expenses. City shall pay for or reimburse Employee for all ordinary,
necessary and reasonable business expenses incurred or paid by Employee in furtherance of
City’s objectives, all of which shall be reimbursed and paid in accordance with City’s policies
and procedures of general application. The City shall provide Employee with a credit card to be
used by Employee to pay for these expenses.
3.4 Professional Development. Subject to City policy and State law, the City
agrees to pay the reasonable professional dues and subscriptions of Employee necessary for
his/her continuation and participation as a member in national, regional, state and local
professional associations and organizations necessary and desirable for his/her continued
professional participation, growth and advancement, and for the good of the City as permitted by
the City’s Budget. City shall pay for all necessary and reasonable continuing education for
Employee as determined by Employee in its reasonable discretion and as funded by the City’s
Budget.
4. Termination. The City Commission may terminate the Employee for Cause as
specified below and in accordance with Article III, Section 3. Removal, of the City of South
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4.1 Termination for Cause. For purposes of this Agreement, a termination by
Employer for “Cause” shall mean termination by action of Employer pursuant to this Section 4.1.
Employer shall have the right to terminate Employee for Cause upon the occurrence of one or
more of the following events:
4.1.1 A determination by Employer made reasonably and in good faith
that Employee has breached this Agreement in any material respect.
4.1.2 Employee’s conviction by a court of competent jurisdiction of
fraud with respect to the business or affairs of Employer or any affiliated person or entity of
Employer.
4.1.3 Employee is found by a court of competent jurisdiction to have
violated Employer’s anti-harassment policy.
4.1.4 Excessive alcohol or drug usage by Employee to an extent that it
interferes with the performance of Employee’s duties under this Agreement.
4.1.5 The conviction by a court of competent jurisdiction of, or pleading
nolo contendre by, Employee of (a) a misdemeanor involving dishonesty, fraud, theft,
misappropriation, embezzlement or the like or (b) a felony.
4.1.6 Employee, by reason of mental or physical disability or illness, is
unable to perform his/her duties as described in Section 1 for more than an aggregate of 180 days
in any consecutive 12-month period.
4.1.7 The death of Employee.
In the event Employee is terminated pursuant to this Section 4.1, Employee shall be
entitled to receive only such compensation and benefits thereafter (including, without limitation,
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annual salary and other benefits which Employee has earned through the effective date of such
termination, and Employee shall not receive any compensation or benefits in respect of any
periods after the effective date of such termination.
4.2 Termination Upon Voluntary Resignation. In the event Employee
voluntarily resigns his employment with City, Employee shall be entitled to receive the annual
salary and other benefits, which Employee earned through the effective date of such resignation;
provided, however, following receipt of Employee’s resignation, City shall have the right to
accelerate the effective date of Employee’s resignation, provided it agrees to pay to Employee
the amounts Employee would otherwise be paid hereunder through the intended resignation date.
4.3 Termination Other Than by Voluntary Resignation or For Cause.
Employee shall have the right to terminate the Agreement upon a breach of the Agreement by the
City and shall further be entitled to all rights and remedies under Florida law, in the event of a
breach of the Agreement by City. The Employee shall provide City with 10 days written notice
of any breach of the Agreement by City. The City shall have 10 days to cure the alleged breach
claimed by the employee. In the event the parties fail to resolve the issues of said breach within
20 days thereafter, this issue shall be submitted by either party for mediation and if necessary
arbitration. All costs, expenses and attorneys’ fees shall be assessed or paid as stated in
Section 4.1.
Upon a final determination by the arbitrator that the City has breached the Agreement or
if City terminates Employee for any reason other than for Cause, Employee shall be entitled to
receive (i) the annual salary payable through the balance of the Term of this Agreement and
(ii) continued benefits as set forth in Section 3 of this Agreement (or City can make payments
therefore, as applicable) through the balance of the Term of this Agreement.
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Anything to the contrary notwithstanding, the City may terminate the manager without
cause as the Charter provides at any time. If this event occurs, then the mediation and arbitration
procedure set forth above will be applied. In no event do the parties contemplate going to a court
of competent jurisdiction but instead propose to resolve any disputes by mediation and
arbitration as here to forth set forth.
5. Withholding. Anything to the contrary notwithstanding, the annual salary and
other payments required to be made by City under this Agreement to Employee or Employee’s
estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax
and other payroll deductions as Employer may reasonably determine it should withhold pursuant
to applicable law or regulation.
6. Miscellaneous.
6.1 Notices. All notices, demands or requests provided for or permitted to be
given pursuant to this Agreement must be in writing and shall be delivered or sent, with the
copies indicated, by personal delivery, telecopy (with confirmation and additional copy sent by
overnight delivery service) or overnight delivery service (by a reputable international carrier) to
the parties as follows (or at such other address as a party may specify by notice given pursuant to
this Section):
To City: Phillip
(Address)
With a copy to: Larry
(Address)
Maria M. Menendez
(Address)
To Employee: Employee
(Address)
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All notices shall be deemed given and received one business day after their delivery to
the addresses for the respective party, with the copies indicated, as provided in this Section.
6.2 Entire Agreement. This Agreement and any other contemporaneous
written agreements entered into by the parties contain the sole and entire binding agreement
between and representations made by the parties to each other and supersede any and all other
prior written or oral agreements and representations between them.
6.3 Amendment. No amendment or modification of this Agreement shall be
valid unless in writing and duly executed by the parties affected by the amendment or
modification.
6.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective representatives, heirs, and successors.
6.5 Waiver. Any waiver or changes to this agreement by either party of any
breach of any provision of this Agreement must be in written form, signed by both parties, and
shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the
same or any other provision of this Agreement.
6.6 Captions. The captions contained in this Agreement are inserted only as a
matter of convenience or reference and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any of its provisions.
6.7 Construction. In the construction of this Agreement, whether or not so
expressed, words used in the singular or in the plural, respectively, include both the plural and
the singular and the masculine, feminine and neuter genders include all other genders. Since
both parties have engaged in the drafting of this Agreement, no presumption of construction
against any party shall apply.
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6.8 Section References. All references contained in this Agreement to
Sections shall be deemed to be references to Sections of this Agreement, except to the extent that
any such reference specifically refers to another document. All references to Sections shall be
deemed to also refer to all subsections of such Sections, if any.
6.9 Severability. In the event that any portion of this Agreement is illegal or
unenforceable, it shall affect no other provisions of this Agreement, and the remainder of this
Agreement shall be valid and enforceable in accordance with its terms.
6.10 Business Day. As used in this Agreement, the term “business day” means
any day other than a Saturday, Sunday or legal or bank holiday in the City of South Miami,
Florida (the “City”). If any time period set forth in this Agreement expires on other than a
business day in the City, such period shall be extended to and through the next succeeding
business day in the City.
6.11 Assignment. Neither this Agreement nor any rights under this Agreement
may be assigned by either party without the written consent of the other party.
6.12 Other Documents. The parties shall take all such actions and execute all
such documents which may be necessary to carry out the purposes of this Agreement, whether or
not specifically provided for in this Agreement.
6.13 Governing Law. This Agreement and the interpretation of its terms shall
be governed by the laws of the State of Florida, without application of conflicts of law principles.
6.14 Counterparts. This Agreement may be executed and delivered in three
counterparts, each of which shall be deemed to be an original and both of which, taken together,
shall be deemed to be one agreement.
6.15 Indemnification. The City agrees to defend, hold harmless and indemnify
Employee from any and all claims, suits, causes of action, or proceedings of any kind brought
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The parties have executed this Agreement as of the date set forth above.
PASSED AND ADOPTED THIS ____ day of ______________, 2010.
ATTEST: APPROVED:
___________________________ ____________________________
CITY CLERK MAYOR
Commission Vote:
Mayor Stoddard
_______________________________ Vice Mayor Newman
EMPLOYEE Commissioner Beasley
Commissioner Harris
READ AND APPROVED AS TO FORM Commissioner Palmer
AND SUFFICIENCY:
_______________________________
CITY ATTORNEY